Ohio prosecutors want law change to allow them to veto times when criminal defendants choose to have a judge decide a case

iStockphotoSince 2001, 44 percent of felony trials in Cuyahoga County Common Pleas Court have been heard by judges instead of juries.

Ohio prosecutors want to change the law to give themselves veto power when a criminal defendant chooses to have his case heard by a judge instead of a jury.

The bill was introduced last month by former Summit County prosecutor Lynn Slaby, who is now a state representative, at the urging of the Ohio Prosecuting Attorneys Association. It's not the first time prosecutors have pushed for the change.

Slaby said the judiciary is overwhelmingly fair, but there are instances when a judge might have intentional or unintentional bias in favor of a defendant.

"The whole jurisprudence system is based on the jury system," Slaby said. "Until we do away with juries entirely, it's more fair to have both sides have a right to a jury trial."

Ohio is one of 21 states that gives criminal defendants the right to choose between a bench and a jury trial. The other 29 states and federal courts give prosecutors that choice as well.

PD FileState Representative Lynn Slaby

The decision by defendants and their attorneys to choose a judge or jury is primarily viewed as tactical.

"With some judges, you would never think about waiving jury," said Barry Wilford, a Columbus attorney and public policy director for the Ohio Association of Criminal Defense Attorneys. "But if you have a good judge and have confidence in their integrity, you just might in such cases."

Since 2001, 44 percent of felony trials in Cuyahoga County Common Pleas Court have been heard by judges instead of juries. Statewide, about one-third of felony trials have been heard by judges in the last 10 years.

Edward LaRue, president-elect of the Cuyahoga Criminal Defense Lawyers Association, said he has long been "mystified" why a prosecutor would care if a defendant opted for a bench trial.

"If you bring a case in good faith, why should it concern you whether it goes before a judge or a jury," LaRue said. "After all, the facts are the facts."

Defense attorneys think it can be advantageous to have a judge try a case if it involves, for example, child molestation. In those instances, judges are better able to determine a victim's credibility and will be less affected emotionally by the accusations than a jury might.

Cuyahoga County Prosecutor Bill Mason said he supports Slaby's bill. In a 2005 Plain Dealer article about the rising number of bench trials, Mason labeled some judges as "soft" on crime. He was more circumspect during an interview Wednesday.

"I think it's fair to have both sides be able to request a jury," Mason said.

Wilford said this is the fifth time in the last 20 years that prosecutors have pushed for veto power over bench trials. None of the previous bills introduced in the legislature have made it out of committee. The difference this time, he said, is that Slaby chairs the House Criminal Justice Committee.

The Ohio Judicial Conference, an organization of Ohio judges, opposes the bill. The OJC issued a statement last month that said the bill seeks to "redefine the fundamental fairness provided by the criminal justice system" to criminal defendants.

"If the General Assembly adopts this legislation, it will have abandoned that tradition in favor of a more powerful prosecutorial institution," the statement said.

Mark Schweikert, a retired Hamilton County Common Pleas judge and director of the conference, said the proposed law could also affect municipal court cases, where most trials are heard by judges. Prosecutors could use the threat of a jury trial to drive harder bargains during plea negotiations, Schweikert said. A defendant would likely face higher legal fees and court costs for a jury trial compared with a bench trial, he said.

Prosecutors have always had the option of filing an affidavit of prejudice if they believe a judge in a case is biased, Schweikert said.

"We really don't need to have another tool for that," he said.

Should the bill be approved and signed into law, it's unclear it could go into effect without a ruling by the Ohio Supreme Court, which under the state Constitution, has the authority to set rules for court procedures. The Ohio Prosecuting Attorneys Association believes the legislation would trump that authority.

A Supreme Court spokesman declined to comment about the bill, citing the possibility that justices might have to decide the issue.

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